NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAOLA FRENCH; RUSSELL FRENCH, No. 22-55571
Plaintiffs-Appellees, D.C. No. 5:20-cv-00416-JGB-SP v.
CITY OF LOS ANGELES, MEMORANDUM*
Defendant-Appellant,
and
SALVADOR SANCHEZ, in his official capacity and in his individual capacity; DOES, 1-10, inclusive,
Defendants.
Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding
Argued and Submitted August 15, 2023 Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
The City of Los Angeles appeals from the district court’s denial of the City’s
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. motion for a new trial and renewed motion for judgment as a matter of law.
Because the parties are familiar with the facts, we do not recount them here. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The City argues that the district court prejudicially erred by excusing
Sanchez from testifying on the expectation that he would validly invoke the Fifth
Amendment privilege against self-incrimination as to any question asked. Such so-
called “blanket” invocations of the Fifth Amendment are disfavored in both
criminal and civil contexts; the general rule is that a witness must invoke the
privilege in response to each question asked. See United States v. Pierce, 561 F.2d
735, 741 (9th Cir. 1977). Even so, we have recognized a narrow exception in the
criminal context where “the court, based on its knowledge of the case and of the
testimony expected from the witness, can conclude that the witness could
legitimately refuse to answer essentially all relevant questions.” United States v.
Tsui, 646 F.2d 365, 368 (9th Cir. 1981) (internal quotations and citations omitted).
It is an open question in our Circuit whether there is a similar narrow exception to
the general rule in civil cases.
In civil cases, unlike in criminal cases, a trial court can permit the jury to
make an adverse inference from a witness’s invocation of the Fifth Amendment
privilege against self-incrimination in some circumstances. An adverse inference
simply means that the jury, when so instructed by a judge, is allowed to assume
2 that a witness’s refusal to answer a question indicates that the actual answer would
have been harmful to the witness. In the civil context, the court must decide both
(a) what specific adverse inference the jury can draw, and (b) whether to allow the
adverse instruction. The court makes both decisions on a question-by-question
basis. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264–65 (9th Cir.
2000). A court’s decision to allow an adverse inference in response to a witness’s
invocation of the privilege against self-incrimination thus assumes that the witness
first invoked the privilege on a question-by-question basis. See id.
In a civil case, completely excusing a witness from testifying based on a
blanket invocation of the privilege could interfere with the proper drawing of an
adverse inference on a question-specific basis. Here, however, the district court
essentially conducted the question-by-question invocation “on paper” for the
purpose of allowing the jury to draw adverse inferences on a question-specific
basis. The district court allowed the City to submit a list of questions to which
Sanchez had invoked the privilege in his previous deposition. The district court
then granted the City’s request for an adverse inference instruction to the jury as to
every question on that list. The district court also allowed the parties to play
portions of the video deposition at trial, and the district court instructed the jury to
treat the video deposition as Sanchez’s live testimony.
We need not decide whether the district court abused its discretion in
3 excusing Sanchez from testifying under these circumstances, because even if the
district court erred, the error “did not materially affect the verdict.” Barranco v. 3D
Sys. Corp., 952 F.3d 1122, 1127 (9th Cir. 2020) (citation omitted). The parties
agreed to admit video of Sanchez’s deposition testimony. At the hearing on
Sanchez’s request to be excused from testifying on the witness stand, the City
primarily argued that the deposition video was insufficient because the jury could
better assess Sanchez’s credibility through live testimony. When the district court
rejected that argument, the City also noted that “depositions obviously only cover
certain questions.” Although that statement suggests the City would have asked
Sanchez more questions at trial, the City did not identify to the district court any
additional questions it would have asked Sanchez. Further, when the court gave the
City the opportunity to submit a list of questions from which an adverse inference
could be drawn, the City did not ask to add any new questions or press for any
additional adverse inferences. And during closing, the City used Sanchez’s
invocations in his video deposition to make the very arguments it insisted it would
have made if Sanchez had given live testimony—i.e., that his invocations in
response to questions about his conduct demonstrated he was not acting within the
course and scope of his employment. Although the City argues on appeal that it
should have been permitted to pursue different lines of questioning, the City
declined to make these arguments in the district court. See In re Mortg. Elec.
4 Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014) (“[A]rguments not raised
in the district court will not be considered for the first time on appeal.”). Given
these circumstances, even assuming that the court erred, any such error was
harmless.
2. The district court did not err in allowing a scope-of-employment jury
instruction based on California Civil Jury Instruction (CACI) No. 3720. Under
California’s scope of employment rule, “[a] nexus must exist between the
employment and the tort if the employer is fairly to be held liable.” Xue Lu v.
Powell, 621 F.3d 944, 948–49 (9th Cir. 2010). The California Supreme Court has
interpreted the scope of employment “broadly under the respondeat superior
doctrine.” Farmers Ins. Grp. v. County of Santa Clara, 11 Cal. 4th 992, 1004
(1995) (collecting cases). We have recognized that California’s scope of
employment rule is significantly broader than the traditional rule. See Xue Lu, 621
F.3d at 948. Moreover, California appellate courts repeatedly have cited CACI
3720 as a correct statement of California law, and the California Supreme Court
has declined to review those opinions. See, e.g., Baptist v. Robinson, 49 Cal. Rptr.
3d 153, 160–62 (Ct. App. 2006); Fitzgibbons v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAOLA FRENCH; RUSSELL FRENCH, No. 22-55571
Plaintiffs-Appellees, D.C. No. 5:20-cv-00416-JGB-SP v.
CITY OF LOS ANGELES, MEMORANDUM*
Defendant-Appellant,
and
SALVADOR SANCHEZ, in his official capacity and in his individual capacity; DOES, 1-10, inclusive,
Defendants.
Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding
Argued and Submitted August 15, 2023 Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
The City of Los Angeles appeals from the district court’s denial of the City’s
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. motion for a new trial and renewed motion for judgment as a matter of law.
Because the parties are familiar with the facts, we do not recount them here. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The City argues that the district court prejudicially erred by excusing
Sanchez from testifying on the expectation that he would validly invoke the Fifth
Amendment privilege against self-incrimination as to any question asked. Such so-
called “blanket” invocations of the Fifth Amendment are disfavored in both
criminal and civil contexts; the general rule is that a witness must invoke the
privilege in response to each question asked. See United States v. Pierce, 561 F.2d
735, 741 (9th Cir. 1977). Even so, we have recognized a narrow exception in the
criminal context where “the court, based on its knowledge of the case and of the
testimony expected from the witness, can conclude that the witness could
legitimately refuse to answer essentially all relevant questions.” United States v.
Tsui, 646 F.2d 365, 368 (9th Cir. 1981) (internal quotations and citations omitted).
It is an open question in our Circuit whether there is a similar narrow exception to
the general rule in civil cases.
In civil cases, unlike in criminal cases, a trial court can permit the jury to
make an adverse inference from a witness’s invocation of the Fifth Amendment
privilege against self-incrimination in some circumstances. An adverse inference
simply means that the jury, when so instructed by a judge, is allowed to assume
2 that a witness’s refusal to answer a question indicates that the actual answer would
have been harmful to the witness. In the civil context, the court must decide both
(a) what specific adverse inference the jury can draw, and (b) whether to allow the
adverse instruction. The court makes both decisions on a question-by-question
basis. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264–65 (9th Cir.
2000). A court’s decision to allow an adverse inference in response to a witness’s
invocation of the privilege against self-incrimination thus assumes that the witness
first invoked the privilege on a question-by-question basis. See id.
In a civil case, completely excusing a witness from testifying based on a
blanket invocation of the privilege could interfere with the proper drawing of an
adverse inference on a question-specific basis. Here, however, the district court
essentially conducted the question-by-question invocation “on paper” for the
purpose of allowing the jury to draw adverse inferences on a question-specific
basis. The district court allowed the City to submit a list of questions to which
Sanchez had invoked the privilege in his previous deposition. The district court
then granted the City’s request for an adverse inference instruction to the jury as to
every question on that list. The district court also allowed the parties to play
portions of the video deposition at trial, and the district court instructed the jury to
treat the video deposition as Sanchez’s live testimony.
We need not decide whether the district court abused its discretion in
3 excusing Sanchez from testifying under these circumstances, because even if the
district court erred, the error “did not materially affect the verdict.” Barranco v. 3D
Sys. Corp., 952 F.3d 1122, 1127 (9th Cir. 2020) (citation omitted). The parties
agreed to admit video of Sanchez’s deposition testimony. At the hearing on
Sanchez’s request to be excused from testifying on the witness stand, the City
primarily argued that the deposition video was insufficient because the jury could
better assess Sanchez’s credibility through live testimony. When the district court
rejected that argument, the City also noted that “depositions obviously only cover
certain questions.” Although that statement suggests the City would have asked
Sanchez more questions at trial, the City did not identify to the district court any
additional questions it would have asked Sanchez. Further, when the court gave the
City the opportunity to submit a list of questions from which an adverse inference
could be drawn, the City did not ask to add any new questions or press for any
additional adverse inferences. And during closing, the City used Sanchez’s
invocations in his video deposition to make the very arguments it insisted it would
have made if Sanchez had given live testimony—i.e., that his invocations in
response to questions about his conduct demonstrated he was not acting within the
course and scope of his employment. Although the City argues on appeal that it
should have been permitted to pursue different lines of questioning, the City
declined to make these arguments in the district court. See In re Mortg. Elec.
4 Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014) (“[A]rguments not raised
in the district court will not be considered for the first time on appeal.”). Given
these circumstances, even assuming that the court erred, any such error was
harmless.
2. The district court did not err in allowing a scope-of-employment jury
instruction based on California Civil Jury Instruction (CACI) No. 3720. Under
California’s scope of employment rule, “[a] nexus must exist between the
employment and the tort if the employer is fairly to be held liable.” Xue Lu v.
Powell, 621 F.3d 944, 948–49 (9th Cir. 2010). The California Supreme Court has
interpreted the scope of employment “broadly under the respondeat superior
doctrine.” Farmers Ins. Grp. v. County of Santa Clara, 11 Cal. 4th 992, 1004
(1995) (collecting cases). We have recognized that California’s scope of
employment rule is significantly broader than the traditional rule. See Xue Lu, 621
F.3d at 948. Moreover, California appellate courts repeatedly have cited CACI
3720 as a correct statement of California law, and the California Supreme Court
has declined to review those opinions. See, e.g., Baptist v. Robinson, 49 Cal. Rptr.
3d 153, 160–62 (Ct. App. 2006); Fitzgibbons v. Integrated Healthcare Holdings,
Inc., No. G048413, 2015 WL 1954643, at *10 (Cal. Ct. App. Apr. 30, 2015), as
modified on denial of reh’g (May 29, 2015). Accordingly, the district court did not
err in approving a jury instruction that relied on CACI 3720’s long-ratified
5 language.1
3. The district court did not err in denying the City’s renewed motion for
judgment as a matter of law because substantial evidence supports the jury’s
conclusion that Sanchez was acting within the scope of his employment when he
shot the Frenches. “A renewed motion for judgment as a matter of law is properly
granted only if the evidence, construed in the light most favorable to the
nonmoving party, permits only one reasonable conclusion, and that conclusion is
contrary to the jury’s verdict.” Castro v. County of Los Angeles, 833 F.3d 1060,
1066 (9th Cir. 2016) (internal quotations and citations omitted). Here, Sanchez
used a personal weapon and holster, was in civilian clothes, and was off-duty and
out of his duty area. But Sanchez also self-identified as a police officer on the
scene, told first responders that he thought he was responding to an active shooter,
testified that he relied upon his police training, used ammunition issued by the Los
Angeles Police Department, and was allowed to carry a concealed weapon and
high-capacity magazine off-duty without a permit by virtue of his employment
with the Los Angeles Police Department. Construed in the light most favorable to
the Frenches, this evidence and the remainder of the record does not permit only
one reasonable conclusion contrary to the jury’s verdict that Sanchez acted within
1 For this reason, we also decline the City’s invitation to certify the question to the California Supreme Court, as we have little doubt that the California Supreme Court would uphold CACI 3720 as a correct statement of the law.
6 the scope of his employment.
AFFIRMED.